The Unbearable Whiteness of Environmental Law

This post is the fourth in a series about human rights and environmental, climate, and energy justice. The series builds on a forthcoming article, Environmental Justice as Environmental Human Rights, by Member Scholar John H. Knox and co-author Nicole Tronolone.

Member Scholar John Knox's article, Environmental Justice as Environmental Human Rights, recognizes the many accomplishments of U.S. environmental law while pointedly acknowledging its greatest shortcoming: the failure to address environmental racism.

The article highlights the many disproportionate environmental burdens imposed on racial and ethnic minorities and Indigenous peoples in the U.S. and shows how these burdens contravene clear international law norms and principles. Citing multiple examples, including the Flint water crisis, the Dakota Access Pipeline, Louisiana's Cancer Alley, the U.S. military’s bombing and contamination of Vieques, Puerto Rico, and the increasing criminalization of environmental defenders, the article details the myriad ways international human rights bodies are scrutinizing the U.S. and finding its dismal environmental justice record wanting.

The article also highlights two extremely important reports by United Nations independent human rights experts decrying “sacrifice zones” where racial, ethnic, and other marginalized populations experience the devastating consequences of polluting industry. (You can read those reports here and here.)

As a solution, the article proposes stronger linkages between environmental justice movements and international human rights law. As Environmental Justice as Environmental Human Rights explains, international human rights law provides an important tool for understanding how environmental racism undermines U.S. environmental law.

International human rights law (including the International Convention on the Elimination of All Forms of Racial Discrimination, to which the U.S. is a party) prohibits intentional discrimination as well as policies and practices with disparate impacts (including steering polluting facilities into communities populated by people of color). International human rights law has also developed specific norms governing the rights of Indigenous peoples and peoples who reside in unincorporated territories (such as Puerto Rico).

Using human rights standards as a guide, the article highlights what it terms U.S. environmental law’s “catastrophic” failure to address environmental racism and protect marginalized communities. It does so by juxtaposing U.S. compliance with many procedural requirements of international human rights law, with key areas of substantive non-compliance. These include failure to protect environmental defenders, inadequate compliance with substantive international environmental norms, ineffective enforcement, failure to address pervasive racial discrimination, and violation of the rights of Indigenous peoples to free, prior, and informed consent to activities that might seriously harm them.

We asked what lessons Environmental Justice as Environmental Human Rights offers for environmental law pedagogy. The first and biggest lesson is that U.S. environmental law’s race problem is a core failing, one that leaves marginalized communities vulnerable to environmental harm notwithstanding the United States’ elaborate edifice of environmental laws.

Unfortunately, this recognition has yet to make it into many environmental law classrooms. As documented in one recent empirical study, leading environmental law casebooks give short shrift to environmental justice — relegating it to the periphery of the environmental law curriculum. In so doing, these casebooks reinforce “the unbearable whiteness of environmental law” — the message that environmental law is a technocratic specialty, rather than social justice advocacy.

Relying on these casebooks, environmental law faculty may unwittingly discourage students of color from pursuing a career in environmental law and fail to equip the next generation of environmental law scholars and practitioners with the knowledge and skills to address some of the most pressing contemporary issues of socio-ecological justice.

While some law schools have stand-alone courses on environmental justice, the topic’s marginalization or outright exclusion from the foundational environmental law course sends a message to students that environmental justice and environmental racism are not central to the practice of environmental law.

This message stands in sharp contrast to developments in the legal practice those students will enter. Environmental justice is increasingly central to the work of public interest environmental law organizations and state and federal environmental protection agencies. Environmental law casebooks and classrooms should be integrating environmental justice into every topic and educating students about the dangers of colorblind environmental advocacy.

What would it mean to teach U.S. environmental law in a manner that genuinely promotes environmental justice? We have provided a handy checklist that faculty can use to assess and improve their performance.

1. Have you educated yourself about the ways that legal pedagogy reinforces structural racism? Here is a place to start.
2. Are you taking concrete steps to enhance your ability to talk knowledgeably and comfortably in the classroom about race, racism, and environmental law?
3. Do you read the work of scholars (especially scholars of color) who write on environmental justice?
4. Do you supplement your textbook with the leading environmental justice cases?
5. Do you read and assign the writings of environmental justice scholars and practitioners? (Hint: this can be a good way to introduce the racist origins of contemporary environmental injustice, including colonial expansion, land theft, genocide, slavery, the seizure of Mexican territory, the colonization of Puerto Rico, Guam, and the Virgin Islands, segregation, redlining, NIMBYism, and racially discriminatory zoning.)
6. Do you integrate race and environmental justice into every topic throughout the semester rather than relegating environmental racism to a stand-alone unit or the unit on the siting of polluting facilities?
7. Do you invite guest lecturers with expertise on environmental racism?
8. Do you include environmental justice problems for every topic that you cover, thereby enabling students to develop the skills they will need to navigate these problems as practicing attorneys?
9. Will you read Environmental Justice as Environmental Human Rights and use it to educate your students about U.S. non-compliance with international human rights norms, including racial equality and the rights of Indigenous peoples?
10. Since scholarship and pedagogy feed one another, will you disrupt the unbearable whiteness of environmental law by including a critical mass of scholars of color in your environmental law workshops, symposia, book projects, and speaker series?

Environmental Justice as Environmental Human Rights issues a call for action on environmental racism. We hope it sparks a (long overdue) reckoning with structural racism in environmental law — in what we teach, how we teach it, and how our students practice in the field.